Lucedale Automobile Co. v. Daughdrill

• Decision Date: 30 September 1929
• Docket Number: 27981
• Court: Mississippi Supreme Court
• Parties: LUCEDALE AUTOMOBILE CO. et al. v. DAUGHDRILL

123 So. 871

154 Miss. 707

LUCEDALE AUTOMOBILE CO. et al. v. DAUGHDRILL

No. 27981

Supreme Court of Mississippi

September 30, 1929

Division B

1 AUTOMOBILES. Highway running through unincorporated village with railroad depot and several buildings, was "public highway where territory contiguous thereto is closely built up," within law regulating speed (Hemingway's Code 1927, section 6680). Highway running through an unincorporated village, with a railroad and railroad depot with several buildings along highway, held "public highway where territory contiguous thereto is closely built up," within the meaning of Laws 1916, chapter 116, section 2 (Hemingway's Code 1927, section 6680), providing a maximum rate of speed of fifteen miles per hour under such circumstances.

2. AUTOMOBILES. Whether automobile driver was exceeding fifteen miles per hour at time of striking mule held for jury (Hemingway's Code 1927, section 6680).

Evidence in action to recover damages for death of mule struck by automobile, relative to whether automobile driver, immediately before appearance of mule, was driving at a greater rate of speed than fifteen miles an hour, in violation of Laws 1916, chapter 116, section 2 (Hemingway's Code 1927, section 6680), held sufficient for submission to jury.

3. AUTOMOBILES. Automobile driver, killing mule while driving at excessive speed, was prima-facie negligent (Hemingway's Code 1927, sections 6680, 6690).

Under Laws 1916, chapter 116, section 12 (Hemingway's Code 1927, section 6690), violation by automobile driver of speed limit prescribed by Laws 1916, chapter 116, section 2 (Hemingway's Code 1927, section 6680), at time of striking mule in highway, together with killing of the mule, made out a prima-facie case of negligence.

4. TRIAL. Instructions requiring finding that death of mule was result of driving automobile at excessive speed were not erroneous, because failing to use words "proximate cause." Instructions in action to recover for death of mule struck by automobile, requiring jury to find that mule was struck and killed as a result of the automobile being driven at an unlawful speed, or by reason of such unlawful speed, were not erroneous because of failure to use words "proximate cause;" language used being equivalent in meaning thereto.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of George county, HON. W. A. WHITE, Judge.

Action by Mrs. Pearl Daughdrill against the Lucedale Automobile Company and another. Judgment for plaintiff, on appeal from justice court, and defendants appeal. Affirmed.

Affirmed.

O. F. Moss, of Lucedale, for appellant.

Where a community is not incorporated, and the territory contiguous to a highway running through it is not closely built up, a rate of speed of twenty-five or thirty miles per hour is reasonable.

Ulmer v. Pistole (Miss.), 76 So. 552.

The negligence of the defendant must be the proximate cause of the injury before a recovery can be had.

Pounders v. Day, 118 So. 298.

The degree of care which an operator of an automobile on a public highway must exercise is the care a reasonably prudent man would observe under like circumstances.

Reaves v. Maybank, 69 So. 137, 193 Ala. 614; McCaa v. Thomas, 92 So. 414, 207 Ala. 211; Ulmer v. Pistole, 76 So. 522, 115 Miss. 485; Tennessee Mill & Feed Co. v. Giles, 99 So. 84, 211 Ala. 44; Roberts v. Eason, 6 La. App. 703; Hudson v. Jackson Brewing Co., 4 La. App. 549; Smith v. Interurban Transp. Co., 5 La. App. 704; Hester v. Hall, 81 So. 361, 17 Ala.App. 25.

E. W. Breland, of Leakesville, for appellee.

A highway running through an unincorporated village where the territory contiguous thereto is closely built up, is such a "public highway" as comes within the provisions of Hemingway's Code 1927, sec. 6680, limiting the speed of automobiles to fifteen miles an hour.

The driver of an automobile must keep his machine constantly under control; he must continue on the alert for pedestrians and others using the highway and must anticipate their presence. To assume that the way is clear is not his right.

Ulmer v. Pistole, 78 So. 533.

OPINION

ANDERSON, J.

Appellee brought this action in the court of a justice of the peace of George county to recover from appellants the value of a mule belonging to appellee, alleged to have been negligently killed by appellants, by means of an automobile belonging to appellant Lucedale Automobile Company, and operated by its agent, appellant W. H. Fagan, and recovered a judgment for the amount sued for, two hundred dollars. From that judgment appellants prosecuted an appeal to the circuit court of George county, where there was a trial, resulting again in a judgment in favor of the appellee in the sum of two hundred dollars. From that judgment, appellants prosecute this appeal.

In June, 1927, the appellant Fagan, while driving a Ford car belonging to the appellant the Lucedale Automobile Company through the village of Leaf in Greene county, struck a mule belonging to the appellee, and killed it. Fagan was, at the time, an employee of the Automobile Company, and engaged about the business of his principal. Leaf is an unincorporated village, situated on a railroad, and has a railroad station. The mule was struck and killed in the nighttime, while Fagan was driving south through the village, and his evidence as to the facts and circumstances of the killing of the mule was without substantial dispute. According to his evidence, he was driving at a rate of from fifteen to thirty miles an hour when the mule suddenly ran out something like ten feet in front of the automobile. Fagan applied his brakes, and tried to stop the car, but failed to do so. The mule was struck with great violence--so great that its head and neck came in contact with, and broke, the windshield of the car. Fagan was unable to see the mule until it appeared in front of the car, and he testified that it was impossible for him to stop the car before striking the mule. The north and south public highway through...